J.C. Hyness v. Boston, City of - Police Department (SPR 20230360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2023 SPR23/0360 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petitions of J.C. Hyness, of Live Boston 617 Inc., appealing the response of the City of Boston (City) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2023, J.C. Hyness requested, “…the primary and/or arresting officer(s) BWC footage as well as booking photo(s), report(s) and other records associated with the following post: https://bpdnews.com/news/2023/1/8/firearm-arrest...” The City responded on February 10, 2023. Unsatisfied with the response, J.C. Hyness petitioned this office and this appeal, SPR23/0360, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Shawn A. Williams, Esq. SPR23/0360 Page 2 February 28, 2023 The City’s February 10th Response In its February 10, 2023 response, the City cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In his appeal, Mr. Hyness states, “[u]nder exemption (f), it is stated that the police incident report may be released to a requester after the records custodian has redacted the exempt portions from the record. Additionally under exemption (f) the records custodian must identify and specify what portions of the record are exempt, and provide an explanation in their denial…” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. In its response, the City stated, “[t]he records you requested are associated with an active and ongoing investigation involving a minor. As such, your request is denied, as all records associated with this matter are exempt from disclosure pursuant to the investigative exemption to the public records law. G. L. c. 4., § 7 (26) (f).” Based on the City’s response, it is unclear what type of records it possesses that it withheld from disclosure. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or

Shawn A. Williams, Esq. SPR23/0360 Page 3 February 28, 2023 exemptions upon which the withholding is based . . .”). Therefore, the City must identify the type of records it has in its possession that it is withholding under Exemption (f). Further, although the City claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f) or are part of the investigation. It is unclear from the City’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City did not demonstrate how disclosure of any portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is ordered to provide J.C. Hyness with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: J.C. Hyness